concealed the injury for any considerable time after she had opportunity to complain; if the place where the fact was alleged to be committed was where it was possible she might have been heard, and she made no outcry; these and the like circumstances carry a strong but not conclusive presumption that her testimony is false or feigned." 4 Bl. Com. 213.

These remarks are for the most part but a condensed statement from what had already been said by an earlier author. 1 Hale, P. C. 634, 635.

Wharton says: "In prosecutions for rape, where the party injured is a witness, it is material to show that she made complaint while it was yet recent." Whart. Crim. Ev. (9th ed.) § 273.

525. Evidence of Previous Offenses or Attempts.-But where a prisoner is tried for a particular crime, it is always competent to show on the question of his guilt that he had made an attempt at some prior time, not too distant, to commit the same. offense. Upon the trial of a prisoner for murder, it is competent to show that he had made previous threats or attempts to kill his victim. People v. Jones, 99 N. Y. 667. Upon the same principle, it must always be competent to show that one charged with rape had previously made an unsuccessful attempt to do so. State v. Way, 5 Neb. 287; Whart. Crim. Ev. 35, 46, 49; Lawson v. State, 20 Ala. 65, 56 Am. Dec. 182; State v. Knapp, 45 N. H. 156; State v. Wallace, 9 N. H. 515; Strang v. People, 24 Mich. 6; State v. Marvin, 35 N. H. 22; Sharp v. State, 15 Tex. App. 171; Com. v. Nichols, 114 Mass. 285, 19 Am. Rep. 346; Reg. v. Rearden, 4 Fost. & F. 76; Com. v. Lahey, 14 Gray, 92; Reg. v. Jones, 4 L. T. N. S. 154; Reg. v. Chambers, 3 Cox, C. C. 92; Com. v. Merriam, 14 Pick. 518; Williams v. State, 8 Humph. 585.

§ 526. Consent Secured by Fraud.-The plaintiff in error is a physician having a wife and four children. The prosecutrix is a single woman thirty years of age. The commission of the offense rests upon her testimony alone. Her evidence, briefly stated, is, that the plaintiff in error, while attending her in a professional capacity, told her that she had a disease of the womb, and that a physical examination was necessary; that she submitted with much reluctance; that he had carnal connection with her, on two occasions, while professing to be making such examination; that this occurred in the parlor of her brother's house, in the day time, while the wife of her brother was in an adjoining room; that she made no outery; that she believed that while the plaintiff

in error was doing these acts, he was making a medical examination in the usual way, and that she made no revelation of these occurrences until after she had been told that she was pregnant.

No one, we think, would seriously contend that such a statement, made by a female of mature age, and possessing any intellectual capacity ought to be allowed to become the basis of a judicial action. The effort of the prosecution, therefore, was to show that the mental condition of the prosecutrix was such as to render her testimony credible. This effort failed.

The only testimony on this point come from Dr. Stickney, who had known her twenty years. He testified that "she is not an imbecile, but not a smart or strong minded girl."

Farther comment on the facts is unnecessary.

The court, among other points, charged the jury as follows: "As to the degree of force used in a case like this, where resistance is not made by reason of a representation leading the female to believe that sexual penetration of her body is necessary for the recovery from disease, the force used in ordinary sexual intercourse is sufficient to constitute a rape." An exception was taken to this part of the charge.

The prisoner's counsel requested the court to charge several propositions presenting the point, that the force requisite to constitute the crime of rape had not been proved, and also this proposition, namely: that "even if the defendant had accomplished his alleged purpose by fraud, without intending to use force, then such fraud does not constitute rape, unless the evidence shows that the defendant intended to use force, if the fraud failed;" but the court refused to modify the charge, and the prisoner's counsel excepted.

We are of opinion that the proposition, quoted from the charge, is erroneous. No authority has been cited sustaining such a proposition. The remark of Mr. Wharton in his treatise (Am. Crim. L. § 1144) cannot be regarded as having the sanction of his learning and ability. It rests upon no other foundation than a note to the reporter in People v. Bartow, 1 Wheel. Crim. Cas. 381, which states a mere rumor of a decision by Ch. J. Thompson. Loose statements of that kind are entitled to no consideration whatever. Principles contrary to those laid down by the court below have been frequently asserted. See authorities cited in Roscoe, Crim. Ev. (6th ed.) 278, 806. See also People v. Bransby, 32 N. Y. 528; Walter v. People, 50 Barb. 144, 2 Bishop, Crim. L. §§ 1078, 1080.

528. Concurring Assent of both Parties Necessary.

529. Consanguinity may be Proved by Defendant.

530. Offense may be Committed with Illegitimate Daughter. 531. Previous Acts of Lasciviousness may be Shown.

§ 527. The Term Defined.-The carnal copulation of a man and a woman related to each other in any of the degrees within which marriage is prohibited by law. It is punished by fine and imprisonment, under the laws of the respective states. Vide 1 Smith's Laws of Pa. 26; Dane, Abr. Index, h. t.; Com. Dig. 23, 2, 68; State v. Roswell, 6 Conn. 446; 1 Penal Laws of China, §§ 2, 10; Swinb. Jud. Reg. part 2, p. 103, § 17; 1 Bouvier, Law

Dict. 617.

§ 528. Concurring Assent of both Parties Necessary.— In an Oregon case (State v. Jarvis, 20 Or. 439), the prosecutrix testified that the incestuous intercourse commenced in 1884, when she was 16 years old, and continuing as often as twice a week and sometimes oftener and until April, 1889; that at no time did she willingly consent, but was compelled by force to submit; that at one time defendant pointed a pistol at her and said he would kill her if she refused; at another time he threatened her with an ax; and at another, with a board; that she did not complain to any one because defendant said he would shoot her if she told anybody about the matter. It was argued for the appellant that the crime of incest requires the concurring assent of both parties, and that under the facts in this case defendant was guilty of rape, if guilty of any crime, and could not be convicted of the crime of incest. The crime of incest was not indictable at common law, but is so only by statute. 4 Bl. Com. 64; Bishop, Statutory Crimes, § 728. To the statute alone, then, must be looked for a definition of the crime and for a solution of the question in the case.

In People v. Jenness, 5 Mich. 321, it is said by Christiancy, J.: "This offense (incest) can only be committed by the concurrent act of two persons of opposite sexes; and the assent or concur

rence of the one is as essential to the commission of the offense as that of the other; and as a general rule both must be guilty or neither."

In Delany v. People, 10 Mich. 241, the information was based on a statute, the language of which was as follows: "If any man and woman, not being married to each other, shall lewdly and lasciviously associate and cohabit together, every such person shall be punished," etc.; held that the offense was joint, and both parties must be guilty, or neither. In DeGroat v. People, 39 Mich. 124, under a statute, the language of which is the same import, it was held that conviction could not be had unless the act was by concurrent assent of both parties.

Cooley, J., speaking for the court, said: "Fornication, when the element of near relationship makes it incest, may be an offense equally detestable and heinous, but it still lacks the distinguishing characteristic of rape. The one is accomplished by the impelling will of one person, and the other by the concurrent assent of two." In Baumer v. State, 49 Ind. 544, 19 Am. Rep. 691, the statute provided "if any step-mother and her step-son shall have sexual intercourse together," etc.; and it was held that the act must be joint, and one of the parties cannot be guilty unless the other is also, and the acquittal of one is a bar to the trial of the other. So in State v. Thomas, 53 Iowa, 214, under a statute which provided that "if any persons within the prohibited degrees carnally know each other, they shall be deemed guilty of incest," it was held that the crimes of rape and incest cannot be committed by the same act; the consent of both parties to the connection being necessary to constitute the crime of incest under the statute. In Yeoman v. State, 21 Neb. 171, the statute provided that "persons within certain degrees, who shall commit adultery or fornication with each other, shall be punished," etc., it was held that one of the parties might be indicted alone, but the court said: "It is true that both must be guilty, that the intermarriage, cohabitation, adultery or fornication must be by a union of minds as well as of actions." In State v. Ellis, 74 Mo. 385, 41 Am. Rep. 321, it was held that where the evidence proves the crime of rape, the party cannot be convicted of the crime of incest. So in People v. Harriden, 1 Park. Crim. Rep. 344, it was held under a statute similar to ours, that when the illicit connection is accomplished by force, the defendant cannot be convicted of incest, but

only of rape. In Noble v. State, 22 Ohio St. 545, by way of argument, it is said: "The crime of incest is committed by two willing parties." A doctrine contrary to that laid down in the authorities before referred to, has been held in Mercer v. State, 17 Tex. App. 452, and People v. Barnes (Idaho) Jan. 25, 1886. The Texas case is based upon former decisions of the same court and one Michigan nisi prius case, which has been repudiated by the court of last resort of that state, as we have already seen. The Idaho case is not in point in the case before us. The statement of the law as given in 10 Am. & Eng. Enc. Law, 341, is not believed to be supported by the weight of authority. The only cases cited as authority for the statement are the Texas and Michigan nisi prius cases, above referred to, and Norton v. State, 106 Ind. 163. The decided weight of authority is that the crimes of rape, by forcible ravishment, and incest cannot be committed by the same act, but that of incest requires the concurring assent of both parties. Possibly if the assent of one party was induced by fraud or deception, the party perpetrating the fraud might be guilty of incest, while the innocent party would not, or one party might be ignorant of the relationship, while the other had full knowledge of it, and so other circumstances might arise under which one party would be guilty and the other innocent. State v. Jarvis, 20 Or. 437.

In this country there are several cases to the same effect. Thus, in Cook v. State, 11 Ga. 53, where the defendant was indicted for incestuous intercourse with his own daughter. In Cayford's Case, 7 Me. 57, against a married man for lewd and lascivious cohabitation; and in Ham's Case, 11 Me. 391, for adultery, it was held, that the marriage might be proved by the admissions of the defendant. Cayford's Case required the court to go no further than to say the evidence was admissible where the marriage was solemnized out of the state or country, and accordingly the court confined their decision to that point, though their reasoning went beyond it; but subsequently in Ham's Case, they decided that whether the marriage was within or without the state, made no difference. These cases are entitled to the more respect from the fact, that they appear to have been decided after careful consideration and study of the authorities. See also Cameron v. State, 14 Ala. 546, 48 Am. Dec. 111; Forney v. Hallacher, 8 Serg. & R. 159, 11 Am. Dec. 590.